IN THE CASE OF:	   

		BOARD DATE:	  31 October 2013

		DOCKET NUMBER:  AR20130002972 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his undesirable discharge be upgraded.   

2.  The applicant states he completed his reconciliation service prescribed by Presidential Proclamation 4313 to upgrade his clemency discharge.  

3.  The applicant provides:

* his Reaffirmation of Allegiance and Pledge to complete Alternate Service, dated 4 February 1975
* ADMINCEN Form 1966-3 (Enlisted Statement - Request for Discharge for the Good of the Service), dated 4 February 1975
* his application, with enclosures, to the Army Discharge Review Board (ADRB), dated 24 April 1981
* correspondence, dated from 29 May 1981 to 6 October 1992 between the applicant and the ADRB
* ADRB Docket AD 81-15341, dated 10 December 1982
* a letter, dated 10 December 1982, from Department of the Army, Military Review Boards Agency
* a letter, dated 27 January 1983, from the Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO
* excerpts from his military service records
* a letter, dated 1 July 2012, from the Department of Veterans Affairs (VA) to the Dimond Medical Clinic, Anchorage, AK


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 8 July 1969, he was inducted into the Army of the United States.  

3.  On 28 January 1970, he accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from the U.S. Army Overseas Replacement Station, Oakland, CA, from 5 December 1969 to 25 January 1970.

4.  In his application to the ADRB, he stated his tour of duty in Vietnam was from 23 February 1970 to 23 December 1970.

5.  While in Vietnam he was assigned to the 26th Engineer Battalion, 
23rd Infantry.  

	a.  He accepted NJP on:

* 5 May 1970 for failing to go at the time prescribed to his place of duty
* 15 July 1970 for being AWOL from 11 June to 20 June 1970

	b.  He was promoted to specialist four effective 5 October 1970.

	c.  He was awarded the Army Commendation Medal for meritorious achievement from 1 July to 31 October 1970.

6.  The exact facts and circumstances concerning his AWOL status upon his return from Vietnam are not available.  According to ADRB Docket AD 81-15341, the applicant returned to the United States, stopped at Fort Lewis, WA, and proceeded on leave to Michigan.  He hand-carried his records and they were lost during a break-in at his home while he was AWOL.  He was AWOL almost a year before he officially made attempts to turn himself in to military authorities.  Because of the lack of records there may have been no reason to know that the applicant was AWOL.  Several years passed before the applicant officially turned himself in.

7.  Having returned to military control from an AWOL status and having been dropped from the rolls of his organization, the applicant was assigned to the Joint Clemency Processing Center, Fort Benjamin Harrison, IN, effective 
1 February 1975.

8.  On 4 February 1975, he reaffirmed his allegiance to the United States of America and pledged to faithfully serve 12 months alternate service.  

9.  On 4 February 1975, after having been advised by military counsel of the nature of the offenses for which he could be tried, the applicant executed an ADMINCEN Form 1966-3, in which he voluntarily requested discharge for the good of the service under the provisions of Presidential Proclamation Number 4313.  He indicated:

	a.  He understood his absence was characterized as a willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the Uniform Code of Military Justice (UCMJ) and could lead to the imposition of a bad conduct discharge or dishonorable discharge.  He acknowledged he was making the request of his own free will, he had not been subject to coercion, and he had been afforded the opportunity to consult with counsel and had been fully advised as to the nature of the offenses for which he could be tried and the maximum permissible punishment which could be imposed.  

	b.  He understood that he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of all service benefits and VA benefits, could be deprived of his rights as a veteran under Federal and State law, and he could expect to encounter substantial prejudice in civilian life as a result of an undesirable discharge.

	c.  He understood that within 15 days of the date of receipt of the Undesirable Discharge Certificate he was required to report to his State Director of Selective Services to arrange for the performance of alternate service.  He further understood that satisfactory completion of such alternate service would be acknowledged by the issuance of a Clemency Discharge Certificate, but that this certificate would not alter his ineligibility for benefits predicated upon his military service.

10.  On 4 February 1975, the applicant was discharged under the provisions of Presidential Proclamation 4313.  He had completed 1 year, 4 months, and 
16 days of net active service that was characterized as under other than honorable conditions.  He received an Undesirable Discharge Certificate.  He had 227 days time lost before his normal expiration of term of service (ETS) and 
1,299 days after his normal ETS.  His DD Form 214 (Report of Separation from Active Duty) contains an entry stating he agreed to serve 12 months alternate service pursuant to Presidential Proclamation 4313.

11.  A letter, dated 14 April 1976, from the Selective Service System certified the applicant completed his reconciliation service prescribed by Presidential Proclamation 4313.

12.  A DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 14 April 1976, added an entry to his 
DD Form 214 with an effective date of 4 February 1975.  This entry indicated he was issued a Clemency Discharge in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation 4313.

13.  On 10 December 1982, the ADRB denied the applicant's request to upgrade his discharge.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

14.  Presidential Proclamation 4313 was issued on 16 September 1974 by President Ford.  It identified three categories of persons and permitted them to apply for clemency discharge.  Those categories were:

* civilian fugitives who were draft evaders
* members of the military who were still AWOL
* former military members who had been discharged for desertion, AWOL or missing movement.

Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial.  Those who elected to earn a clemency discharge (AWOL’s and discharged members) could be required to perform up to 24 months alternate service.  Upon successful completion a clemency discharge would be issued.  The clemency discharge did not affect the individual’s underlying discharge, and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service, the original undesirable characterization of service would be retained.
15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows that he did not complete his enlistment due to 227 days of lost time prior to his expiration of his term of service.  Under the provisions of Presidential Proclamation Number 4313, of 16 September 1974, he requested a discharge for the good of the service.  He was afforded the opportunity to consult with defense counsel and to voluntarily, and in writing, request separation from the Army acknowledging that he would receive a discharge under other than honorable conditions and that he would voluntarily participate in an alternative service program for no more than 24 months. 

2.  He was told his discharge would be changed to a Clemency Discharge if he performed alternative service.  He was not told his discharge would be upgraded. He performed alternative service and he was issued a Clemency Discharge.  There is no error or injustice in this scenario.

3.  The applicant's service in Vietnam, promotion to specialist four, and award of the Army Commendation Medal were noted.  Two of his NJP's were imposed while he was in Vietnam.  As a specialist four, he should have been aware of other avenues that were available to him in trying to solve his personal problems. Therefore, these factors are not sufficiently mitigating to excuse his extensive period of AWOL.  

4.  He received NJP on three occasions, he had 277 days of lost time prior to his ETS due to AWOL, and he had 1,299 days time lost due to AWOL after his normal ETS.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.
5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.
Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.

6.  In view of the foregoing, there is an insufficient basis for upgrading his discharge to an honorable discharge or a general discharge under honorable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130002972



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130002972



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1